Letter to Senator Nita Green, Chair Senate Legal and Constitutional Affairs Committee – Legislation Committee
Dear Senator Green
RE: INQUIRY INTO THE AHRC AMENDMENT (COSTS PROTECTIONS) BILL 2023
Thank you for the opportunity to comment on the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (the Bill).
National Legal Aid considers the costs provisions contained in the Bill will remove a significant barrier to accessing justice, by ensuring applicants can access legal representation and are supported to come forward without the risk of becoming bankrupt or facing significant debt simply for enforcing their rights. This will in turn lead to greater judicial consideration of anti-discrimination laws, which will send a clear message that this behaviour is unacceptable. It will also allow damages awards to better reflect community standards.
We note our strong support for the passage of the Bill and welcome the introduction of this new legislation that aims to remove the financial barriers that prevent victims of discrimination and sexual harassment from seeking justice.
This support is informed by the experiences of our clients and lawyers, as well as engagement we have undertaken previously with stakeholders on these issues, including through the Power to Prevent coalition.
We note and attach our response from earlier this year to the Attorney General Department’s Review into an appropriate costs model for Commonwealth anti-discrimination laws (the Review). We also acknowledge the work of our sector partners, including the Power to Prevent coalition, and note our support of their submission to this Inquiry.
A more detailed outline of this support for the equal access model, response to concerns raised in the Senate, and considerations regarding how the Bill could be further strengthened, particularly in relation to proposed subsection 46PSA(6), are set out in Annexure 1 for your consideration.
We take a client-centred approach when providing legal help, which places the client’s interests at the centre and is responsive to their unique experience of discrimination, including intersectional discrimination. See Annexure 2 for further detail.
Please do not hesitate to contact Katherine McKernan, Executive Director, National Legal Aid at katherine.mckernan@legalaid.nsw.gov.au or on 0425 288 446 should any further information be required.
Yours sincerely,
LOUISE GLANVILLE
Chair, National Legal Aid
CEO, Victoria Legal Aid
Annexure 1: Response to the Inquiry
I. ‘Equal access’ costs protection model
We support the adoption of key principles of the equal access model in the Bill and believe this will greatly enhance access to justice for people who have experienced discrimination and harassment, and particularly people experiencing socio-economic and other disadvantage.
Although a soft costs neutrality model was originally proposed in the Respect@Work report, comprehensive consultation earlier this year demonstrated strongly held and consistent views that the modified ‘equal access’ costs protection provision achieves the policy objectives of recommendation 25 of the Respect@Work report (R@W report) and reflects the public interest in holding people to account for discrimination and harassment. To that end, we consider the cost provisions in this Bill represent a positive progression on the previous costs provisions that were proposed in the Anti-Discrimination and Human Rights Legislation Amendment (Respect@Work) Bill 2022. In particular, an equal access model will help overcome the deterrent effect that an adverse costs order poses to applicants, and will address the power imbalances and resource disparities present in most discrimination proceedings.
At the time the R@W report was published, costs options were an emerging area of law that needed further review, and it was important for the government to consider which model was most appropriate. In December 2022, the Australian National University published Damages and Costs in Sexual Harassment Litigation: A Doctrinal, Qualitative and Quantitative Study1 (the Study), commissioned by the Attorney-General’s Department. The Study was a comprehensive review of damages and cost orders in Australian unlawful discrimination proceedings, pursuant to recommendations 24 and 25 of the R@W report. The Study suggested that costs protections, whereby an applicant may not be ordered to pay costs incurred by another party, except where an applicant has instituted proceedings vexatiously or acted unreasonably, modelled on s 18 of the Public Interest Disclosure Act 2013 (Cth) and s 1317AH of the Corporations Act 2001 (Cth), be implemented in federal anti-discrimination law. As a result, the model adopted in the Bill is consistent with the Government commissioned research recommendations.
We note that the Power to Prevent coalition submitted a joint statement to the Review in support of an Equal Access Costs Model signed by 85 signatories, including National Legal Aid, representing broad support across the sector for this model.
II. Addressing remaining concerns with the Bill
We note some other concerns raised in relation to the Bill during the second reading and address these below.
a) Possible increase in litigation
A modest increase in litigation would be a positive outcome, demonstrating more people are able to access their rights and that the current barriers to access to justice for people who have experienced discrimination and harassment, and particularly people experiencing socio-economic and other disadvantage, have been removed.
While an equal access model may encourage more claimants to choose to pursue their matter in the Federal jurisdiction, we consider that, overall, the change is unlikely to result in a significant increase in litigation. As referenced in the Study conducted by the Australian National University, the number of discrimination matters that proceed to hearing is low in all jurisdictions. Other barriers to litigation will remain, including the significant time, work and emotional energy demanded by litigation, which has the general effect of deterring most people from pursuing a discrimination claim to court.
b) Unmeritorious complaints
We consider that unmeritorious complaints will be discouraged by the risk of an adverse costs order if the complainant has acted vexatiously or unreasonably in commencing the proceedings or in the way they have conducted themselves in the proceeding. If the complaint has sufficient merit to be considered reasonable, then it is appropriate to have the option of having it considered by a court. The reasons for this position are discussed at page 9 of National Legal Aid’s previous submission to the Attorney General’s Department, dated 14 April 2023 (attached).
III. Options for further strengthening the Bill
NLA broadly supports the passage of the Bill, and we are pleased to see several recommendations made in previous submissions that have been addressed or implemented through this draft legislation.
We consider the Bill could still be further strengthened, particularly in relation to s 46PSA, as outlined below.
a) Respondent’s unreasonable act or omission – proposed s 46PSA(6)
Section 46PSA(6) provides that an applicant may be liable for costs where their unreasonable act or omission has caused the respondent to incur those costs (regardless of the outcome). The same rule should apply to successful respondents, namely, the Bill should contain a provision to the effect that a successful respondent may be liable for costs where their unreasonable act or omission has caused the applicant to incur those costs. This is consistent with the costs provisions in the Fair Work Act 2009 (Cth), and is necessary as a matter of fairness. We propose the following wording:
S 46PSA(5) Where the respondent is successful, they may be ordered to pay costs to the applicant if the court is satisfied that the respondent’s unreasonable act or omission caused the applicant to incur the costs.
b) Guidance on unreasonable act or omission – proposed s46PSA(6)(b)
National Legal Aid has previously recommended that guidance on what constitutes an unreasonable act or omission should be included in the costs provisions of the Bill, or otherwise in the Explanatory Memorandum. Though this has now been partially addressed by inclusion of guidance in the Explanatory Memorandum in relation to s 46PSA(4), we propose that this guidance could be contained in a subsection at the end of s 46PSA and apply to the unreasonable acts/omissions of both respondents and applicants. NLA’s submission also includes suggested wording for this guidance that expands on the wording currently included in the Explanatory Memorandum.
c) Update to guidance in Explanatory Memorandum in relation to s46PSA(6)
While the guidance in the Explanatory Memorandum in relation to s46PSA(4) is not specifically repeated in relation to s 46PSA(6), it would be hoped that a court would take this guidance into account when interpreting the phrase “unreasonable act or omission” in both s46PSA(4) and s46PSA(6). For clarity, we recommend the Explanatory Memorandum to include this guidance in relation to both s 46PSA(4) and s 46PSA(6).
d) Review
We note our support for the Bill to be reviewed after three or five years of operation, to consider the effectiveness of the Bill in achieving its objects.
Annexure 2: Legal Aid Commissions and Our Work in Discrimination Law
Over the past five years Victoria Legal Aid’s (VLA) specialist discrimination law service, the Equality Law Program, has provided over 5,600 legal advice sessions regarding discrimination matters, including over 800 advice sessions about sexual harassment and sex discrimination. VLA has also played a leading role in collaborative advocacy for reforms to prevent and address sexual harassment. This includes establishing the Power to Prevent coalition, an alliance of around 80 diverse community organisations, unions, academics, peak bodies, health professionals, lawyers and victim-survivors, to inform the Respect@Work report and subsequent inquiries.
Legal Aid Queensland (LAQ) through its Human Rights, Anti-Discrimination and Employment law practice provides advice assistance, and representation to Queenslanders who have experienced sexual harassment and sex discrimination in all areas of public life. LAQ has been involved in the Power to Prevent coalition and has contributed to advocacy and submissions relating to the Respect@Work report and Queensland’s recent review of the Anti-Discrimination Act 1991 (Qld).
Legal Aid NSW (LANSW) provides advice and representation in discrimination and harassment matters to New South Wales residents via its specialist employment law and human rights teams, as well as lawyers in its 22 regional offices. LANSW contributes to inquiries and law reform submissions relating to discrimination and employment law and publishes self-help education resources for those experiencing discrimination and harassment such as the Discrimination Toolkit: Your Guide to Making a Discrimination Complaint.
Northern Territory Legal Aid Commission (NTLAC) provide legal advice, referral and assistance in employment and discrimination matters, including sex discrimination, throughout the Northern Territory and support the Power to Prevent coalition. NTLAC also provided extensive submissions in the recent review of the Northern Territory’s Anti-Discrimination Act 1992 (NT).
We also note that VLA, Legal Aid NSW, Legal Aid WA and Legal Aid Queensland have received funding under the National Legal Assistance Partnership 2020-25 Bilateral Schedule to provide front-line support to address workplace sexual harassment. This has allowed some of the legal aid commissions to expand in order to deliver these services. For example, Legal Aid NSW is establishing a new statewide Respect at Work Legal Service (RAWLS) to provide legal services to people experiencing workplace sexual harassment and discrimination. RAWLS solicitors will work with Legal Aid NSW employment and human rights specialist teams to provide comprehensive advice and representation services. Community engagement officers will connect clients to RAWLS and assist with promotion and community legal education activities.
About National Legal Aid
NLA represents the directors of the eight state and territory legal aid commissions in Australia. Legal aid commissions have extensive experience assisting victims of discrimination and sexual harassment and advocating for systemic changes to improve safety and access to justice in Australia. Our lawyers have specialist knowledge of sexual harassment and discrimination law and a strong commitment to helping people resolve their legal problems and get a fair outcome.
14 April 2023
Attorney-General’s Department
Review into an appropriate cost model for Commonwealth anti-discrimination laws
National Legal Aid (NLA) welcomes the review into an appropriate cost model for Commonwealth anti-discrimination laws by the Attorney-General’s Department. We commend the Government for its commitment to implement all Respect@Work Report recommendations, and for taking the time to consult and carefully consider the last remaining recommendation requiring legislative action, being recommendation 25 concerning a costs protection provision for discrimination proceedings.
Legal aid commissions represent people who are among the lowest paid and in the most precarious employment in Australia. We see the real harm that discrimination and sexual harassment causes and how difficult it is for people to take any kind of action given the social, emotional and financial costs and risks involved in doing so.
NLA strongly recommends that the Australian Government adopt the Equal Access costs model in discrimination matters.
This model is the most equitable option outlined in the Consultation Paper,1 being the only option that will support all individuals to enforce their right to non-discrimination, irrespective of how much money they earn. It also recognises the public interest in supporting people to speak up about discrimination and deterring unlawful conduct.
It is our view that the equal access model has the potential to encourage people who experience the highest rates of discrimination to come forward and pursue a legal claim. This includes Aboriginal and Torres Strait Islander women, women of colour, gender diverse people, women with disability, younger women and older women.
This recommendation is informed by the experiences of our clients and lawyers, as well as engagement we have undertaken previously with stakeholders on these issues, including through the Power to Prevent coalition.
A more detailed discussion about the equal access model and our concerns about the other options proposed is set out in Annexure 1 for your consideration.
About National Legal Aid
NLA represents the directors of the eight state and territory legal aid commissions in Australia. Legal aid commissions have extensive experience assisting victims of discrimination and sexual harassment and advocating for systemic changes to improve safety and access to justice in Australia. Our lawyers have specialist knowledge of sexual harassment and discrimination law and a strong commitment to helping people resolve their legal problems and get a fair outcome.
For example, over the past five years Victoria Legal Aid’s (VLA) specialist discrimination law service, the Equality Law Program, has provided over 5,600 legal advice sessions regarding discrimination matters, including over 800 advice sessions about sexual harassment and sex discrimination. VLA has also played a leading role in collaborative advocacy for reforms to prevent and address sexual harassment. This includes establishing the Power to Prevent coalition, an alliance of more than 60 diverse community organisations, unions, academics, peak bodies, health professionals, lawyers and victim-survivors, to inform the Respect@Work Report and subsequent inquiries.
Legal Aid Queensland (LAQ) through its Human Rights, /Anti-Discrimination and Employment law practice provides advice assistance, and representation to Queenslanders who have experienced sexual harassment and sex discrimination in all areas of public life. LAQ has been involved in the Power to Prevent coalition and has contributed to advocacy and submissions relating to the Respect@Work report and Queensland’s recent review of the Anti-Discrimination Act 1991 (Qld).
Legal Aid NSW (LANSW) provides advice and representation in discrimination and harassment matters to New South Wales residents via its specialist employment law and human rights teams, as well as lawyers in its 22 regional offices. LANSW contributes to inquiries and law reform submissions relating to discrimination and employment law and publishes self-help education resources for those experiencing discrimination and harassment such as the Discrimination Toolkit: Your Guide to Making a Discrimination Complaint.
Northern Territory Legal Aid Commission (NTLAC) provides legal advice, referral and assistance in employment and discrimination matters, including sex discrimination, throughout the Northern Territory and support the Power to Prevent Coalition. NTLAC also provided extensive submissions in the recent review of the Northern Territory’s Anti-Discrimination Act 1992 (NT).
We also note that VLA, Legal Aid NSW, Legal Aid WA and Legal Aid Queensland have received funding under the National Legal Assistance Partnership 2020-25 Bilateral Schedule to provide front-line support to address workplace sexual harassment. This has allowed some of the legal aid commissions to expand in order to deliver these services. For example, Legal Aid NSW is establishing a new statewide Respect at Work Legal Service (RAWLS) to provide legal services to people experiencing workplace sexual harassment and discrimination. RAWLS solicitors will work with Legal Aid NSW employment and human rights specialist teams to provide comprehensive advice and representation services. Community engagement officers will connect clients to RAWLS and assist with promotion and community legal education activities.
We take a client-centred approach when providing legal help, which places the client’s interests at the centre and is responsive to their unique experience of discrimination, including intersectional discrimination.
Thank you for the opportunity to provide feedback on this important review. We would welcome the opportunity to discuss this submission with you further.
Yours faithfully,
Louise Glanville
Chair